1 2 3 4 5 6 7 10 11 ALEXANDRA JUNEAU and WILLIAM Case No.: 23-cv-614-DMS-KSC JUNEAU, 12 ORDER SANCTIONING Plaintiffs, 13 DEFENDANT’S COUNSEL FOR v. FAILURE TO APPEAR AT STATUS 14 CONFERENCE AND FAILURE TO SUBARU OF AMERICA, INC., 15 APPEAR AT HEARING ON ORDER Defendant. TO SHOW CAUSE 16 17 18 19 On May 16, 2023, the Court issued a Scheduling Order pursuant to Federal Rule of 20 Civil Procedure 16. See Doc. No. 11. The Scheduling Order set a counsel-only Status 21 Conference for September 1, 2023, at 10:00 a.m. Id. The Court held the Status Conference 22 as scheduled. Doc. No. 18. Counsel for plaintiffs appeared. Id. None of defendant’s three 23 attorneys of record—Daniel R. Villegas, Jacqueline Bruce Chinery, or Khachatur Chris 24 Ourkhan—appeared for the Status Conference as ordered. Id. The Court thereafter issued 25 an Order to Show Cause Why Sanctions Should Not be Imposed Against Defendant’s 26 Counsel (the “First OSC”) and set a hearing on the First OSC for September 15, 2023, at 27 which defendant’s attorneys of record were all ordered to appear. See Doc. No. 19. The 28 Court also set a deadline of September 11, 2023, for defendant’s attorneys of record to 1 submit declarations explaining why they did not appear at the Status Conference on 2 September 1. See id. 3 None of defendant’s three attorneys timely submitted a declaration. Attorney Daniel 4 R. Villegas submitted a declaration two days late, in which he explains that he made a 5 calendaring error that caused him to miss the Status Conference. See Doc. No. 20. He 6 further explained that he was late filing a declaration as ordered because he was in trial. 7 See id. In a “supplemental” declaration also filed on September 13, 2023, Mr. Villegas 8 stated he could not attend the scheduled hearing on the First OSC because he would be at 9 a funeral. See Doc. No. 21. Rather than filing a motion to continue the hearing, he used his 10 supplemental declaration to ask the Court for a continuance. See id. Neither of Mr. 11 Villegas’ declarations explained the absence of his colleagues, Ms. Chinery or Mr. 12 Ourkhan, at the Status Conference. See Doc. Nos. 20, 21. Although the Court normally 13 requires the filing of a motion to continue hearing dates rather than an ad hoc request in a 14 declaration, the Court nonetheless continued the hearing on the First OSC until September 15 22, 2023, the date Mr. Villegas specifically requested in his Supplemental Declaration. See 16 Doc. No. 22.1 17 On September 22, 2023, the Court held a hearing on the First OSC. See Doc. No. 25. 18 Plaintiffs’ counsel appeared. Id. None of defendant’s attorneys appeared. See id. The Court 19 allowed plaintiffs’ counsel to reach out to Mr. Villegas in hopes of securing his presence, 20 but he was not available, nor were his colleagues. See Doc. No. 26. Accordingly, the Court 21 issued an Order to Show Cause (the “Second OSC”) on September 22, 2023, requiring 22 explanations why defendant’s counsel should not be sanctioned for failing to appear at the 23 hearing on the First OSC. Id. The Court set a hearing on the Second OSC for October 6, 24 25 26 1 The Court’s Minute Order continuing the initial OSC hearing from September 15, 27 2023, to September 22, 2023, appeared on the docket. Doc. No. 22. Given the last-minute nature of the postponement of the September 15, 2023, OSC hearing, the Court’s staff also 28 1 2023. Id. The deadline for plaintiffs’ counsel to file a declaration detailing the costs and 2 expenses incurred attending both hearings at which none of defendant’s attorneys appeared 3 was set for September 27, 2023. Id. The Court gave defendant’s attorneys until October 2, 4 2023, to respond to that declaration and to submit declarations of their own explaining why 5 they failed to appear at the hearing on the First OSC. See id. 6 Plaintiffs’ counsel submitted a declaration as ordered, which shows plaintiffs 7 incurred a total of $824.00 in fees due to defense counsel’s failures to appear. Doc. No. 27. 8 All three of defendant’s attorneys submitted declarations responsive to the Second OSC. 9 See Doc. Nos. 28-30. Although they all attempt to explain their collective failures to 10 appear, none of the declarations specifically respond to plaintiffs’ fee declaration. See id. 11 Mr. Villegas claims he failed to attend the hearing on the First OSC because he “was not 12 aware” the Court had continued the hearing on the First OSC at his request. See Doc. No. 13 30. Ms. Chinery and Mr. Ourkhan explained generally that they were not assigned to cover 14 either the September 1, 2021, Status Conference or the September 22, 2023, OSC hearing. 15 See generally Doc. Nos. 28, 29. Ms. Chinery further explains that she thought Mr. Villegas 16 was handling the Status Conference, and therefore she was not required to appear. See Doc. 17 No. 29. As to the hearing on the First OSC, she claims she was “not aware” she was 18 required to appear at the First OSC hearing or submit a declaration explaining her absence 19 at the Status Conference. See id. Mr. Ourkhan states he was “not assigned” to appear at any 20 of the hearings, and therefore he did not know he had to make an appearance at any of them 21 or submit a declaration responsive to the First OSC. See Doc. No. 28. 22 The Court held a telephonic hearing on the Second OSC on October 6, 2023, and the 23 hearing was placed on the record. See Doc. No. 31. At the hearing, defense counsel 24 individually offered sincere apologies for their collective and repeated failures to appear at 25 court-ordered hearings. Plaintiff’s counsel informed the Court that she had incurred another 26 $180 attending the hearing on the Second OSC, which was only necessitated by defense 27 counsel’s failures to appear at the other two hearings. Defense counsel did not address the 28 reasonableness of plaintiff’s expenses. The Court will now rule on the issue of sanctions. 1 The Court may sanction a party or the party’s attorney for a failure to appear at a 2 pretrial conference or the failure to obey a scheduling order. Fed. R. Civ. P. 16(f)(1). The 3 purpose of a Rule 16(f) sanction is “to encourage forceful judicial management.” See 4 Sherman v. United States, 801 F.2d 1133, 1135 (9th. Cir. 1986). “[V]iolations of Rule 16 5 are neither technical nor trivial” because they “involve a matter most critical to the court 6 itself: management of its docket and the avoidance of unnecessary delays in the 7 administration of its cases.” Martin Family Trust v. NECO/Nostalgia Enters. Co., 186 8 F.R.D. 601, 603 (E.D. Cal. 1999) (internal quotation marks omitted); see also Johnson v. 9 Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (noting that disregard of 10 scheduling orders will “undermine the court’s ability to control its docket, disrupt the 11 agreed-upon course of the litigation, and reward the indolent and the cavalier”). 12 The Court has broad discretion to issue appropriate sanctions under Rule 16(f)(1). 13 See Off. Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1397 (9th Cir. 1993) (citing NHL v. 14 Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976)); Martin Family Trust, 186 F.R.D. at 15 602-03. Sanctions are still within the Court’s discretion even if the sanctioned party offers 16 up an excuse and the failure to appear at a hearing is not intentional. See Lucas Auto. Eng’g, 17 Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001).
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1 2 3 4 5 6 7 10 11 ALEXANDRA JUNEAU and WILLIAM Case No.: 23-cv-614-DMS-KSC JUNEAU, 12 ORDER SANCTIONING Plaintiffs, 13 DEFENDANT’S COUNSEL FOR v. FAILURE TO APPEAR AT STATUS 14 CONFERENCE AND FAILURE TO SUBARU OF AMERICA, INC., 15 APPEAR AT HEARING ON ORDER Defendant. TO SHOW CAUSE 16 17 18 19 On May 16, 2023, the Court issued a Scheduling Order pursuant to Federal Rule of 20 Civil Procedure 16. See Doc. No. 11. The Scheduling Order set a counsel-only Status 21 Conference for September 1, 2023, at 10:00 a.m. Id. The Court held the Status Conference 22 as scheduled. Doc. No. 18. Counsel for plaintiffs appeared. Id. None of defendant’s three 23 attorneys of record—Daniel R. Villegas, Jacqueline Bruce Chinery, or Khachatur Chris 24 Ourkhan—appeared for the Status Conference as ordered. Id. The Court thereafter issued 25 an Order to Show Cause Why Sanctions Should Not be Imposed Against Defendant’s 26 Counsel (the “First OSC”) and set a hearing on the First OSC for September 15, 2023, at 27 which defendant’s attorneys of record were all ordered to appear. See Doc. No. 19. The 28 Court also set a deadline of September 11, 2023, for defendant’s attorneys of record to 1 submit declarations explaining why they did not appear at the Status Conference on 2 September 1. See id. 3 None of defendant’s three attorneys timely submitted a declaration. Attorney Daniel 4 R. Villegas submitted a declaration two days late, in which he explains that he made a 5 calendaring error that caused him to miss the Status Conference. See Doc. No. 20. He 6 further explained that he was late filing a declaration as ordered because he was in trial. 7 See id. In a “supplemental” declaration also filed on September 13, 2023, Mr. Villegas 8 stated he could not attend the scheduled hearing on the First OSC because he would be at 9 a funeral. See Doc. No. 21. Rather than filing a motion to continue the hearing, he used his 10 supplemental declaration to ask the Court for a continuance. See id. Neither of Mr. 11 Villegas’ declarations explained the absence of his colleagues, Ms. Chinery or Mr. 12 Ourkhan, at the Status Conference. See Doc. Nos. 20, 21. Although the Court normally 13 requires the filing of a motion to continue hearing dates rather than an ad hoc request in a 14 declaration, the Court nonetheless continued the hearing on the First OSC until September 15 22, 2023, the date Mr. Villegas specifically requested in his Supplemental Declaration. See 16 Doc. No. 22.1 17 On September 22, 2023, the Court held a hearing on the First OSC. See Doc. No. 25. 18 Plaintiffs’ counsel appeared. Id. None of defendant’s attorneys appeared. See id. The Court 19 allowed plaintiffs’ counsel to reach out to Mr. Villegas in hopes of securing his presence, 20 but he was not available, nor were his colleagues. See Doc. No. 26. Accordingly, the Court 21 issued an Order to Show Cause (the “Second OSC”) on September 22, 2023, requiring 22 explanations why defendant’s counsel should not be sanctioned for failing to appear at the 23 hearing on the First OSC. Id. The Court set a hearing on the Second OSC for October 6, 24 25 26 1 The Court’s Minute Order continuing the initial OSC hearing from September 15, 27 2023, to September 22, 2023, appeared on the docket. Doc. No. 22. Given the last-minute nature of the postponement of the September 15, 2023, OSC hearing, the Court’s staff also 28 1 2023. Id. The deadline for plaintiffs’ counsel to file a declaration detailing the costs and 2 expenses incurred attending both hearings at which none of defendant’s attorneys appeared 3 was set for September 27, 2023. Id. The Court gave defendant’s attorneys until October 2, 4 2023, to respond to that declaration and to submit declarations of their own explaining why 5 they failed to appear at the hearing on the First OSC. See id. 6 Plaintiffs’ counsel submitted a declaration as ordered, which shows plaintiffs 7 incurred a total of $824.00 in fees due to defense counsel’s failures to appear. Doc. No. 27. 8 All three of defendant’s attorneys submitted declarations responsive to the Second OSC. 9 See Doc. Nos. 28-30. Although they all attempt to explain their collective failures to 10 appear, none of the declarations specifically respond to plaintiffs’ fee declaration. See id. 11 Mr. Villegas claims he failed to attend the hearing on the First OSC because he “was not 12 aware” the Court had continued the hearing on the First OSC at his request. See Doc. No. 13 30. Ms. Chinery and Mr. Ourkhan explained generally that they were not assigned to cover 14 either the September 1, 2021, Status Conference or the September 22, 2023, OSC hearing. 15 See generally Doc. Nos. 28, 29. Ms. Chinery further explains that she thought Mr. Villegas 16 was handling the Status Conference, and therefore she was not required to appear. See Doc. 17 No. 29. As to the hearing on the First OSC, she claims she was “not aware” she was 18 required to appear at the First OSC hearing or submit a declaration explaining her absence 19 at the Status Conference. See id. Mr. Ourkhan states he was “not assigned” to appear at any 20 of the hearings, and therefore he did not know he had to make an appearance at any of them 21 or submit a declaration responsive to the First OSC. See Doc. No. 28. 22 The Court held a telephonic hearing on the Second OSC on October 6, 2023, and the 23 hearing was placed on the record. See Doc. No. 31. At the hearing, defense counsel 24 individually offered sincere apologies for their collective and repeated failures to appear at 25 court-ordered hearings. Plaintiff’s counsel informed the Court that she had incurred another 26 $180 attending the hearing on the Second OSC, which was only necessitated by defense 27 counsel’s failures to appear at the other two hearings. Defense counsel did not address the 28 reasonableness of plaintiff’s expenses. The Court will now rule on the issue of sanctions. 1 The Court may sanction a party or the party’s attorney for a failure to appear at a 2 pretrial conference or the failure to obey a scheduling order. Fed. R. Civ. P. 16(f)(1). The 3 purpose of a Rule 16(f) sanction is “to encourage forceful judicial management.” See 4 Sherman v. United States, 801 F.2d 1133, 1135 (9th. Cir. 1986). “[V]iolations of Rule 16 5 are neither technical nor trivial” because they “involve a matter most critical to the court 6 itself: management of its docket and the avoidance of unnecessary delays in the 7 administration of its cases.” Martin Family Trust v. NECO/Nostalgia Enters. Co., 186 8 F.R.D. 601, 603 (E.D. Cal. 1999) (internal quotation marks omitted); see also Johnson v. 9 Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (noting that disregard of 10 scheduling orders will “undermine the court’s ability to control its docket, disrupt the 11 agreed-upon course of the litigation, and reward the indolent and the cavalier”). 12 The Court has broad discretion to issue appropriate sanctions under Rule 16(f)(1). 13 See Off. Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1397 (9th Cir. 1993) (citing NHL v. 14 Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976)); Martin Family Trust, 186 F.R.D. at 15 602-03. Sanctions are still within the Court’s discretion even if the sanctioned party offers 16 up an excuse and the failure to appear at a hearing is not intentional. See Lucas Auto. Eng’g, 17 Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001). The purpose of civil 18 sanctions is to ensure compliance with court orders and to compensate aggrieved parties 19 for the sanctioned party’s failure to comply with court rules and orders. Oracle USA, Inc. 20 v. Rimini St., Inc., ___ F.4th ___, 2023 U.S. App. LEXIS 22345, at *33-34 (9th Cir. 2023); 21 see also United States v. United Mine Workers, 330 U.S. 258, 303-04 (1947) (noting civil 22 sanctions serve “to compensate the complainant for losses sustained”). 23 The Court will individually address whether sanctions shall be imposed against each 24 of the three attorneys. 25 Mr. Villegas 26 The Court must first consider whether Mr. Villegas had cause for failing to appear 27 at the Status Conference on September 1, 2023. Mr. Villegas candidly confesses to a 28 calendaring error. See Doc. No. 20 ¶ 3. Although the Court understands that calendaring 1 errors can and do occur, and the Court would not be inclined to impose a harsh penalty 2 against a party or its attorney because of a mere calendaring error, the function of sanctions 3 is in part to ensure the Court’s orders do not become paper tigers that can be freely 4 disregarded without fear of consequence. Accordingly, a modest sanction will provide Mr. 5 Villegas with an incentive to accurately calendar future hearings, and the Court does not 6 find Mr. Villegas has shown good cause for his failure to appear at the September 1, 2023, 7 Status Conference. 8 As to Mr. Villegas’ failure to appear at the First OSC hearing, he claims he did not 9 know the Court continued the hearing at his request. But the Court’s docket clearly reflects 10 the continuance that was granted via Minute Order on September 14, 2023. See Doc. No. 11 22. Moreover, the Court’s staff took the extra step of providing Mr. Villegas with a 12 “courtesy” notice via email given the last-minute nature of his request for a continuance. 13 Further, at the telephonic Second OSC hearing on October 6, 2023, Mr. Villegas explained 14 that while he and his colleagues have access to CM/ECF filings, he had not read his emails 15 as he was in trial, and therefore did not receive even the courtesy email on time. Given 16 these factors, his excuse for failing to appear at the First OSC hearing does not show good 17 cause sufficient to avoid the imposition of sanctions. 18 Ms. Chinery 19 Ms. Chinery appeared at neither the September 1, 2023, Status Conference nor the 20 hearing on the First OSC. She reasoned that she didn’t realize she had to appear at either 21 hearing because she was not the attorney “assigned” to the case. See generally Doc. No. 22 29. As Ms. Chinery entered an appearance in this matter as counsel of record for defendant 23 [Doc. No. 10], she has an obligation to attend all scheduled hearings, or ensure that they 24 are covered by other counsel of record for her client. Only in this manner can cases proceed 25 in an orderly fashion. Her explanation that she was “not assigned” to cover hearings in this 26 matter does not show good cause for her failure to attend the Status Conference. 27 Her excuse for failing to attend the hearing on the First OSC is even more threadbare 28 given the straightforward language of the First OSC. The Court ordered defendant’s 1 “attorneys of record” (in the plural) to appear at the hearing and show cause why they 2 (again in the plural) should not be sanctioned. The Court does not accept Ms. Chinery’s 3 suggestion that “attorneys of record” and “they” somehow meant “only Mr. Villegas.” 4 Accordingly, Ms. Chinery has shown nothing more than a failure of careful reading, which 5 does not show cause for her failures to appear. 6 Mr. Ourkhan 7 As the Court has already noted, Mr. Ourkhan offered similar explanations for his 8 multiple failures to appear as did Ms. Chinery, i.e., he did not know he had to appear 9 because he was “not assigned” to the case, and so he took no action in response to any of 10 the Court’s orders. See Doc. No. 28. The Court rejects them on the same bases it rejected 11 Ms. Chinery’s explanations. Accordingly, Mr. Ourkhan has not shown cause for his 12 multiple failures to appear. 13 The Amount of Sanctions 14 The appropriate sanction here should compensate plaintiffs for their expenses 15 incurred by defendant’s failures to appear. Oracle USA, Inc., 2023 U.S. App. LEXIS 16 22345, at *33-34. The goal of compensatory sanctions is “to make the injured party whole.” 17 Kraszewski v. State Farm General Ins. Co., 130 F.R.D. 111, 113 (N.D. Cal. 1984) (citing 18 Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 779 (9th Cir. 1983)). “[T]he 19 Court must tailor its award to the pecuniary injury caused by the unexcused conduct.” Id. 20 “The amount necessary to compensate the aggrieved party may be estimated by the 21 sanctioning court.” Id. (citing United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 22 1365, 1371 (9th Cir. 1980)). 23 Plaintiff’s counsel submitted a declaration establishing that counsel spent 1.1 24 billable hours (at a rate of $515.00 per hour) “to prepare for the [September 1, 2023] 25 conference, attend the conference, and communicate with Plaintiffs after the conference.” 26 Doc. No. 27 ¶ 4. As to the September 22, 2023, conference, counsel billed 0.5 hours (as 27 reflected in counsel’s “contemporaneous records”) to “prepare for and attend the 28 conference.” Id. ¶ 5. All told, as laid out in the declaration, plaintiffs incurred a total of 1 $824.00 because of defense counsel’s failures to appear at the Status Conference and the 2 hearing on the First OSC. Id. 4/6. As stated at the hearing on the Second OSC, plaintiffs 3 ||incurred another $180 that would not have been necessary if defendant’s counsel had 4 || appeared at the two prior hearings. Thus, the total fees incurred by plaintiffs are $1,004. 5 || Defendant’s counsel has had the opportunity to challenge the reasonableness of these fees 6 || but has not done so. The Court thus finds them reasonable. However, if the Court awarded 7 full sum of sanctions jointly and severally against all three of defendant’s attorneys, 8 ||counsel would be obligated to report them to the California State Bar because they exceed 9 ||$1,000 and are not issued for a failure to make discovery. See Cal. Bus. & Prof. Code 10 || § 6068(0)(3). The Court considers that penalty disproportionate to counsel’s malfeasance 11 and so exercises its discretion to reduce the total sanctions to $999. 12 Conclusion 13 The Court imposes sanctions of $999 against attorneys Daniel R. Villegas, 14 ||Jacqueline Bruce Chinery, and Khachatur Chris Ourkhan, jointly and severally. The 15 sanctions shall be paid to plaintiffs within ten days of the issuance of this Order. Defense 16 counsel is to submit a statement of compliance with this Order no later than October 20, 17 2023. 19 || Dated: October 6, 2023 Yy JA 20 Mfc fe 7] Hori. Karen 8S. Crawford United States Magistrate Judge 22 23 24 25 26 27 28